Court File and Parties

COURT FILE NO.: CV-12-455879
DATE: 20120713
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Long Valley Productions, Inc., Plaintiff

AND

The Board of Governors of Exhibition Place, Defendant

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Allan Sternberg & Andrea Sanche , Counsel for the Plaintiff

Glenn K.L. Chu , Counsel for the Defendant

Jeffrey Kaufman , Counsel for the Interested Party

HEARD: 13 July 2012

ENDORSEMENT

[ 1 ] The Plaintiff brought a motion originally returnable July 3, 2012 for injunctive relief. It sought a declaration that it had a contract for the rental of Hall C of the Direct Energy Centre (“DEC”) for September 28 through October 1, 2012. It sought an injunction to prohibit the Defendant from renting that premises to anyone other than the Plaintiff for that time period.

[ 2 ] Briefly, by way of background, the Plaintiff sought to rent the hall in question for that time period to have the Toronto Bridal Show (“TBS”) held there. The Plaintiff was of the belief that it had secured those dates and learned in April 2012 that the Defendant had rented the premises to one of its competitors, the Canadian Bridal Show (“CBS”) for that same time and thus, the Plaintiff could not have its show at the DEC as planned.

[ 3 ] On July 3, 2012, counsel for the parties attended along with counsel for CBS, an interested party. The Court was advised that cross-examinations were necessary and, therefore, the motion was adjourned to July 13, 2012. Materials were filed by the parties.

[ 4 ] Resolution of the injunction was achieved late on July 12, 2012 and the parties attended before me today to argue the issue of costs of the motion. I was advised that the Defendant granted the Plaintiff space in the DEC for the week prior to September 28, 2012 so that the TBS will be held during that time frame.

Positions of the Parties

The Plaintiff

[ 5 ] Counsel for the Plaintiff submits that it is entitled to its costs of the motion fixed on a substantial indemnity scale in the sum of $66,175.21. Alternatively, it is submitted the costs ought to be fixed on a partial indemnity scale in the sum of $55,474.11.

[ 6 ] Mr. Sternberg argued that the conduct of the Defendant necessitated the bringing of this motion. He submitted that the conduct of the Defendant was egregious; although the Defendant had promised the Plaintiff the September dates, it gave the space to a competitor of the Plaintiff without affording them the right of first refusal. It was pointed out that the Defendant refused to provide the Plaintiff with any alternative dates and thus, the launching of this motion was necessary and the Plaintiff was successful. Under the circumstances, costs on a substantial indemnity basis are in order.

The Defendant

[ 7 ] Counsel for the Defendant disputed that the Plaintiff was successful on its motion. Mr. Chu argued that the Plaintiff would not have been successful had the motion been argued and the Court required to render a decision because the Plaintiff could not satisfy the test as set out in RJR-Macdonald Inc. V. Canada [i] they could not establish that they had a prima facie case or that if the injunction were not granted, the Plaintiff would suffer irreparable harm. It was argued that the Plaintiff had not entered into a valid contract for the rental of the premises and the Defendant did have an agreement with CBS, whose interests they had to protect.

[ 8 ] There was nothing improper in the conduct of the Defendant, it was submitted. There was no Licensing Agreement between the parties for the September dates; the Plaintiff had held two prior shows at the DEC and knew they had to have a signed Licensing Agreement to secure the space. Mr. Chu submitted that the Defendant did nothing wrong and the injunction would not have been successful so the Plaintiff is not entitled to costs.

CBS, the interested party

[ 9 ] Mr. Kaufman agreed that the motion was poorly conceived and would not have been successful. It was the Plaintiff that decided to abandon its motion and pursuant to Rule 37.07 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, while CBS is not a party to the action, it is a party who would be affected by the order sought and it was necessary for it to retain counsel and file materials. The Plaintiff could not demonstrate irreparable harm, which is necessary for injunctive relief. CBS was dragged into this fight between the parties and ought to be awarded its costs.

Analysis

[ 10 ] According to the materials, the Plaintiff wished the DEC venue for its bridal show in the fall of 2012. The time that the Plaintiff wished to secure was given to one of its competitors, the interested party CBS. Regardless of the reasoning behind the granting of the Licensing Agreement to CBS and not the Plaintiff, in order to obtain the DEC as the venue for its show, the Plaintiff had to bring this motion. The record indicates that no other time periods were offered to the Plaintiff by the Defendant after the September dates were booked with CBS. I was advised on the morning of the motion that there had been resolution the night before and dates the week prior to September 28, 2012 were offered by the Defendant and accepted by the Plaintiff for its fall bridal show. Given that the motion was originally returnable July 3, 2012, it is not clear why the settlement was not reached on that date.

[ 11 ] Regardless of whether or not a judge hearing the motion would have granted the relief sought, it is clear to me that without the bringing of the motion, alternate dates would not have been offered by the Defendant to the Plaintiff. Thus, I agree with Mr. Sternberg’s submission that he was successful on the motion and, in my view, there is nothing in this case to depart from the usual practice that costs follow the event.

[ 12 ] The disposition of costs on a motion for an interlocutory injunction is dependent on the facts of the particular case. I agree with the view of Justice Mackenzie expressed in Satschko et al v. Ontario [ii] where he stated,

In my view, …the court’s discretion relating to costs in interlocutory motions for injunctive relief is to be guided by the principle that regardless of whether the moving party is successful or unsuccessful, the preponderant factor in the exercise of the court’s discretion relating to costs is whether the disposition of the motion for injunctive relief effectively ends the dispute and whether the trial of the issues relating to the dispute has the character of being a virtual certainty.

[ 13 ] In my view, the motion will likely bring an end to the litigation and thus the costs of the motion shall be fixed now.

[ 14 ] Substantial indemnity costs (in the absence of an offer to settle pursuant to the Rules ) are awarded where there is some conduct that is reprehensible or deserving of condemnation by the Court. While I appreciate that the Plaintiff views the actions of the Defendant as egregious, in my view, they fall short of the type of behaviour that warrants costs on a substantial indemnity scale. The Defendant denied it intentionally was trying to deprive the Plaintiff of the opportunity to hold its fall show at DEC. Certainly, the Defendant had an argument that the Plaintiff had not followed the usual procedure to book the time it desired for its show.

[ 15 ] That being said, the Plaintiff was successful in obtaining dates for its bridal show at the Defendant premises after bringing this motion so it is entitled to its costs, which I fix on a partial indemnity basis.

[ 16 ] I have reviewed the Costs Outline submitted by counsel and the summary of the time spent. In my opinion, the hours spent are somewhat excessive, given the nature of the motion. While I agree there was an element of urgency to it, I do not concur that the motion itself was complex. The hours are somewhat excessive, particularly for the drafting of the materials. There is some duplication in the preparation for the original attendance on July 3, 2012 and then again for July 13, 2012.

[ 17 ] Rule 57.01 sets out the factors the Court may consider when exercising its discretion under section 131 of the Courts of Justice Act , RSO 1990, c. C.43 to award costs. I have considered the factors enumerated under Rule 57, as well as the application of the principle of proportionality: rule 1.04. Furthermore, I have taken into account the principles set forth by the Court of Appeal in Boucher v. Public Accountants Council for the Province of Ontario [iii] specifically that the overall objective of fixing costs is to fix an amount that is fair and reasonable in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant. In my view, considering all of the circumstances, I am of the view that the sum of $50,000 inclusive of fees, disbursements and GST is fair and reasonable and I order the Defendant to pay this amount to the Plaintiff within 30 days of the date of the release of these reasons.

[ 18 ] CBS has requested payment of its fees. While I agree with Mr. Kaufman’s submission that the Rules provide for payment of the costs of an entity which is not a party to an action, I am not persuaded on the evidence before me that CBS is entitled to its costs. The Plaintiff did not sue CBS nor did the Board add them as a Defendant under the Rules . Clearly, they would be interested in the outcome of the case, given that they had reserved the September 28, 2012 date with DEC for their bridal show. The interested party, CBS, chose to become involved in the litigation for obvious reasons although this was not a mandatory step as no relief was sought against CBS. I do not accept the submission that the Plaintiff is responsible for the costs incurred by CBS in putting forth its position on the motion. In my view, CBS ought to bear its own costs of the motion.

[ 19 ] Order to go accordingly.

D.A. Wilson J.

Date: 20120713

[i] RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 — https://www.canlii.org/en/ca/scc/doc/1994/1994canlii117/1994canlii117.html

[ii] Satschko et al v. Ontario (2008) — https://www.canlii.org/en/on/onsc/doc/2008/2008canlii3229/2008canlii3229.html

[iii] Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R.(3 rd ) 291 (C.A.) — https://www.canlii.org/en/on/onca/doc/2004/2004canlii14579/2004canlii14579.html